Parliament Volume 4, Issue 1

Autumn 2013

Lemasters Consulting Parliament

Parliament is a quarterly journal focusing on the deathcare profession.

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TABLE OF CONTENTS3 Letter from the Publisher7 Hiring & Firing | 3 Things To Do and Not To Do15 Flipping the Recruiting Process to Save Time & Money16 Social Media | The Ultimate Hiring & Firing Tool?20 Case Analysis | You're Fired!

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getting paid for this?

My brother-in-law fielded all of the high-end questions and ultimately negotiated that they got paid per pound of parsley harvested. It wasn’t a great deal but my son, Max, was smart enough to negotiate that the weight was pre-drying. So all in all we learned a lot about parsley and even a little about getting a job.

It made me think how many businesses only know a little about hiring someone, and probably less about firing someone. Luckily, their job was just for the day so we didn’t have to worry about firing! But it’s true—we as business owners and managers typically know little about the hiring and firing process.

This issue of Parliament looks at some of the issues we encounter when hiring and firing. It is a focus on the process itself, and also a look into social media and how it plays into the game as well. As always, I truly hope you enjoy Parliament, and welcome any comments, feedback, questions, or ideas for future issues.

Best Regards,

O n a recent trip with my kids (ages 8 and 6) they had a chance to get a job.

Nothing serious—no need to call the Department of Labor! It was while visiting some family when they were offered the “job” of working in a garden. Now, this was no little garden. This was hundreds of tomato plants, pepper plants, squash, zucchini, and what seemed like fields of parsley, and basil plants. It was time to harvest some crops and then prepare them.

The kids were excited and wanted to just jump right in to help. While they did a little of everything, the big job was picking a lot of parsley, and then drying it so it could be saved. So, as the day went on, we picked a lot of parsley—a lot. Then the parsley was cleaned, separated, leaves clipped, placed on trays, and dried. The next day we chopped the dried parsley so it could be packaged into containers. Good times!

The real fun for me was watching my two kids slowly go from having fun and helping, to slowly working in questions about how this really worked. Did people get paid for this job? Should they get paid for this job? If they got hired, how long did they have to work? Do we get breaks? Can I have a break now (that was my daughter, Chloe)? And of course how much are we

Letter from the Publisher

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Parliament is published quarterly.

Publisher: Poul LemastersArt Direction & Design: Doth BrandsQuestions? [email protected] are free. Please visit lemastersconsulting.com to sign up. All Content © Copyright 2013 Lemasters Consulting and Poul Lemasters. All Rights Reserved.

About the Publisher

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ABOUT POUL LEMASTERS, ESQ.Poul Lemasters is the publisher of Parliament, a licensed attorney and a funeral director/embalmer. He is an active member of the International Cemetery Cremation Funeral Association where he advises on cremation concerns and FTC compliance to members. Poul is also active in various state funeral, crematory, and cemetery associations.

LEMASTERS CONSULTING | PROACTIVE PREVENTION. REACTIVE COUNSELINGLemasters Consulting provides proactive prevention and reactive counseling through education and support for the deathcare profession. Educational resources published by Lemasters Consulting include whitepapers, a yearly industry-wide survey, Parliament (a complimentary quarterly journal), speaking engagements and presentations. Support services offered through Lemasters Consulting include individual counsel, advice, training, expert witness, licensing, form and contract review and compliance, forms, valuations, policies and procedures, operational audits and buy/sell. www.lemastersconsulting.com

Contributing Author

Photo Page 17 by Poul LemastersPhoto Page 18 by Poul LemastersPhoto Page 21 by Poul LemastersPhoto Page 22 by Poul LemastersPhoto Page 25 by Poul LemastersPhoto Page 26 by Poul Lemasters

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ABOUT MARK A. JORGENSENMark leads the Cincinnati team bringing more than 33 years of management experience. His familiarity with funeral service and cemetery professions is the result of 13 years at Forethought Financial Services/Hillenbrand Industries where he served in a succession of sales and marketing management positions including Vice President/General Manager of a strategic business unit.

As President of GRN Cincinnati, he is actively engaged as a supplier member of the International Cemetery, Cremation and Funeral Association (ICCFA) and his articles have been published in prominent funeral service periodicals including, American Funeral Director magazine and he’s frequently quoted in industry publications.

He earned his bachelor’s and master’s degrees from the University of Cincinnati. He has completed executive education in leadership at the University of Virginia’s Darden Graduate School of Business and has done additional study at the Indiana University Center on Philanthropy.

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It has been said that the lifeline of any business is its employees. You can only achieve what your

greatest employee offers, but your worst employee also limits you. The success of your business rests with your employees. And yet, with that statement, most businesses spend little time on the hiring and firing of employees. In fact, most businesses rush the hiring process and delay the firing process. In both instances, the time spent is never right.

Typically, the inadequacy in the hiring/firing process is a lack of knowledge or lack of confidence in the process itself. The lack of knowledge or confidence leads to a fear in the owner or manager and creates issues. This is probably a direct result of the increase in employment claims in recent history.

In order to reduce the issues (although we here at Lemasters Consulting appreciate the issues) this article is an attempt to cover some of the basics of the hiring/firing process. The following is a list of 3 things you should and shouldn’t do whenever you hire or fire someone. This is in no way meant to be the end-all of the process—but it should help you and your business establish better procedures.

HIRING1) DO BACKGROUND CHECKSYes, background checks are great and can help discover reasons why the person would not be a proper fit, and also help avoid potential liability. Overall, background checks are a great resource and tool, but there are limitations. There are several types of background checks, including employment, criminal, drug, credit,

and social media. If you choose employment or criminal, it is good to conduct them uniformly for all applicants so as to avoid a claim of discrimination. Keep records of any checks you make in order to show your process if questioned.

In regards to drug background checks, again, if you choose this type apply it uniformly so as to avoid claims of discrimination. Also, be aware that drug testing becomes more difficult once the employee is hired. So, if you want to enforce a drug free work place, it is typically easier to start the process during the hiring process. Additionally, if you do begin the drug testing in the hiring process, it can make employee testing easier down the road. (Keep in mind that there are some states with specific drug testing policies—so check first).

Credit background checks are a bit trickier. Can you require a credit check? The answer is a resounding maybe. The threshold question to ask is if the new employee will be in a position that requires handling of money. If the job description includes a financial portion—then a credit check can be required. However, if the job description does not deal with the handling of money—then typically you cannot require a credit check. As for social media, please see the article in this issue of Parliament entitled “Social Media | The Ultimate Hiring & Firing Tool?” on page 16.

Keep in mind that many people believe that ANY background check is ok, so long as they have written permission. This is a false sense of security. Any process you have has to be allowed

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first—then written permission is great. Think of it this way: if someone asked you to rob a bank and had you sign something saying that you were OK with it—do you think it would still be illegal?

2) DO USE AN APPLICATIONApplications for employment help you track your process and identify applicants in a non-discriminatory manner. This should be the first thing you have submitted by any potential applicant. While almost all applications are standard, make sure that yours is acceptable and also helps you in your process.

An application can help by gathering information such as name and address, position applying for, start date if hired, educational background, employment history, and permission for certain background checks. Keep in mind that there are certain prohibited items that you cannot ask in an interview, and as such cannot ask them on an application either. So, make sure you avoid questions on your application such as age, medical background, any drug or alcohol issue, disabilities/impairments (however, if you have a job description you can ask if they are able to perform specific job functions), arrests (however, you can ask about convictions or pending felonies).

Lastly, make sure that your application includes language that will help you in the case of a lie (it’s hard to believe, but people lie!). As an example, you may want to have a statement such as, “I verify the truth and accuracy of the information I have provided in this application. I understand that if any information I have provided is

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Continued...3 Things To Dofalse it will result in my inelligibility for this job, and if hired, can result in my immediate termination.”

3) DO USE A SCRIPTEveryone likes to be casual and just wing it. However, the interview process is not the place for it. The interview should follow a script of open-ended questions that will aid in the determination of who is best qualified for the position and your business. By having a script, it allows the interviewer to focus on the answer and not worry about the next question. The script also provides the interviewer a place to jot notes as it relates to the question.

While the script is a great tool, make sure it is used properly. As an example, and a tale of caution, do not make derogatory notes on the script as it could come back against you. There are cases where an interviewer actually took notes during the interview process and rated the applicants on varying attributes—you can guess the rest. Needless to say it was discovered and used to show discriminatory hiring practices.

1) DO NOT OVERPROMISELet’s say we find an applicant that we like. We get excited during the interview process and then we start talking up the job. Sometimes the applicant believes they go the job—only to find out later that the interview process wasn’t over and they did not get the job.

Imagine an applicant being asked to come to town for their second interview. They take time off from their current job and travel in for what

is called the ‘big second interview.’ During the interview one of the interviewers states that this is really all formality now. The same interviewer jokingly says “You haven’t been arrested for murder or anything—have you?!” The applicant laughs and says no. The interview goes great and the applicant truly believes they got the job. The last question of the interview was, “when can you start?”

The applicant goes home, celebrates, tells family and friends, and even puts their notice in to their current employer. In a few days, the applicant gets a call and is told they did not get the job. The applicant is crushed—and really mad. They get a lawyer and make the argument that they were led to believe they got the job. These cases happen.

It is important to make sure the applicant knows that the interview is an interview and that no matter what is said—there is no job until a confirmation letter is sent, received, and acknowledged. While the confirmation helps, do not lead an applicant on that the job is theirs unless it is.

2) DO NOT RUSHSo many businesses want and need to fill spots and they hire the first person they interview. It is typically a bad move to hire the first candidate. Sometimes the first applicant is the best—but many times the best are still out there.

When hiring someone, make a timeline that is realistic. Do not expect to run an ad on the weekend, then interview that week, and hire someone on the

following Monday. Make the process take some time so you cannot rush. Also, tell the applicants that you are taking some time to fill this position and that they should expect some information back in 1 or 2 weeks. Let them know up-front so they are not worrying or reacting to a long process.

3) DO NOT HIRE FAMILYUnless they are the best fit! Typically we hire family in the business because they are family. It is a bad practice that leads to the worst litigation you can imagine. (As an aside, Lemasters Consulting does not mind handling these horrible issues, but would rather avoid them.) Family can work as employees, but take special precaution.

This means that when a family member is applying for a position, they must do EVERYTHING that any other applicant must do. It means filling out an application, going through an interview process, and knowing their position/expectations. The last part of that statement is critical. So many times family members are hired, and even if they have the talent—they lack an understanding of the job’s requirements and what is expected of them. Without a known expectation you can expect problems between you and the employee, you and the staff, and the employee and staff.

FIRING1) DO MAKE A LISTSimilar to the script when hiring, you need a script when you fire. This script is different though because it is more of a list of what you need to remember to say and get. Keep in mind that firing is a very emotional process. It is easy for everyone to get caught up in various

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they stole from a family. The letter went on to state that they were embarrassed to have a thief among their company. For that reason they were being terminated. Guess what? The employee proved they didn’t steal. The employee went on to make a claim that this was an attempt to fire them on another discriminatory basis. They alleged wrongful termination, discrimination, defamation and other claims. It all settled, but was unnecessary.

In most instances you have a right to fire someone for any reason. In fact, you should make sure that your policy manual identifies positions as at-will. So long as the reason is not discriminatory you can fire them. While it is always recommended to fire someone who has made a serious violation of your policies (like theft) you do not need to write that down as the only reason. By writing it down you are potentially limiting your reason to just those reasons.

2) DO NOT RETALIATEThis may seem like an easy one, but it actually happens a lot. As an example, imagine an employee who is late repeatedly. You have a bad employee and you suspect that there is a reason they are always late—such as drug or alcohol problems. You provide a few warnings, but it continues for months. Then, after arriving to work late, they are sent to run errands and get into a car accident. They are injured and file for worker’s compensation. Should you fire them?

The problem with a firing at this point is it could be seen as a retaliatory discharge of employment. Many states

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Continued...3 Things To Doemotions and lead to saying things we should not say and forgetting to say or ask for things we wanted.

The list should be simple and is for you. You want to highlight what you are going to say—probably along the lines of “you’re fired.” You also want to include all the things you need, such as keys, credit cards, computer passwords, and other company materials.

2) DO PAY THEMMany employers want to hold a last paycheck as a way of making sure certain things get done, like returning property, or outstanding commissions, or even deposits on an apartment. However, the law is clear that an employer can’t withhold pay from an employee. In fact, the only thing an employer can withhold from pay are taxes and any court ordered amounts, such as approved wage garnishment. Other than that, the employee must get their full pay due at the regular time period. (Be aware that many states require unused vacation to be paid as well, and some states even escalate the time frame for the last pay and make it payable as soon as 3 days from date of termination.)

Just because you have to pay them their last pay, this does not mean that you have to provide a severance package. Unless your company has a policy of providing a severance package to employees, then it is your choice. If you do decide to offer a severance package, it is advisable to get something in exchange for it. This could include a covenant not to compete and/or a release agreeing not to sue for anything like discrimination.

3) DO WRITE IT DOWNBut do not write too much. In fact, if you read the next section you will see that it says DO NOT write it down. Talk about lawyer double talk! So what do you write down?

You want to write a letter of termination. It should be short and clean. The letter need only list the employee’s last day of employment and list all the items that the employee is going to return. Additionally, you can identify what the employee shall receive, such as final pay, vacation pay, COBRA, etc. There should be a place for the employee to sign the letter confirming the information.

What if they refuse to sign? Simply sign the letter in their presence and make a note that the employee has refused to sign the letter but it has been provided. Additionally, have someone in your office witness your signature and also provide the employee with a copy of the letter for his or her records.

1) DO NOT WRITE IT DOWNAgain, the double talk. While it is advisable to write down some information, you shouldn’t write everything down. Again, the letter should be brief and simply state “Your employment at Kindness Funeral Home and Cemetery is being terminated as of September 13 2013.” Where employers get into trouble is when they list the reason for the termination.

As an example (and by that I mean it really happened!) if an employer wrote a letter stating that they were very disappointed in the actions of the employee and can’t believe that


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have provisions that protect employees through laws that state if an employee is fired after an accident, it is viewed as retaliatory and it is up to the employer to prove otherwise. This does not mean you can’t fire them, it just means you have a separate law to deal with now. The same issue happens if an employee turns your business into OSHA or some Regulatory Board for a workplace violation. They have protection under the Whistleblower Act and it becomes trickier to terminate them.

3) DO NOT FIRE SOMEONE IN ANGERA fit of rage is never the time to conduct business. When you are angry there is a high tendency to say things that we do not intend to say. (That does not mean the statements are not true—it just means you shouldn’t have said them!) Always prepare for a termination. It should not be off the cuff as this will lead to issues.

If there is an instance where an employee really screws up, and you know they should be fired, just wait. Send the employee home immediately if need be, but do not just fly off the handle and fire them. After you have sent them home you can catch your breath and think through the process. You can do any investigation that is needed, such as last pay, what needs returned, do we want to offer a severance for a covenant not to compete, and do we need to worry about retaliation. Then, tomorrow, with a clear head and with a letter, you can properly terminate them.

Neither hiring nor firing are things that management looks forward to doing. They are both timely processes and can be overwhelming. The do’s and don’ts listed above are not the only things you need to consider but they should cover the big items. Use them to get a process in place so you can focus on the real issue of the employee.

Continued...3 Things To Do

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Flipping the Recruiting Process to Save Time & Money

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As an owner or hiring manager, have you experienced this? A qualified, licensed funeral

director impresses you sufficiently with her resume and follow-up telephone conversation that you decide to bring her in for a face-to-face interview. You purchase an airline ticket, you pay for ground transportation, a hotel room and meals. You then spend two days interviewing, introducing staff and touring facilities.

After she returns home you extend a formal offer, contingent upon a successful background check. In the course of the interview you asked her if she held a valid driver’s license—an essential condition for her work. She affirmed that and as part of your background check you contacted the bureau of motor vehicles to verify the information. Upon receiving that verification, you discover that she indeed holds a driver’s license but will not be insurable on your company policy to drive funeral home vehicles. That means no “first call,” no processions, not even moving vehicles around the parking lot in today’s litigious world.

That inability to perform such a job requirement is what we as recruiters refer to as a “knockout dimension.” This otherwise well-qualified and personable candidate has a driving record that would make even Lindsey Lohan cringe. Unfortunately, you must rescind the offer. That’s embarrassing for the candidate and an unpleasant phone call for you.

Worse still, you may have invested several thousand dollars on her visit—both direct costs for travel expenses and lost opportunity costs for you and

your staff, spending time interviewing her instead of going about your other critical business activities. You’ve also lost time in the process meaning a great candidate may have been offered and accepted employment at another funeral home while all this played out with your leading candidate.

Surprisingly, this is easily prevented. In the course of our work we often find many critical gateways, such as this one. Holding a driver’s license and proving insurable on the company policy must be known before hiring. Taking an application from every candidate before engaging in a lengthy, often expensive interview process is the first step toward a simple solution.

Besides gathering basic contact information, a good application will require a candidate to restate prior employment history, share their driver’s license and social security numbers for checking with the BMV and doing a criminal background search.

They will sign the application to affirm that this information is truthful as stated and to authorize you to investigate. Both are important. You want to be able to corroborate the information that’s on the resume—does the job history match-up? You also want authorization to check that driver’s record and learn that your candidate isn’t wanted in seven states for some heinous crimes.

Most funeral homes will also require a drug test. Some will do a check on credit history. The rationale for the latter is often twofold. First, a candidate with a poor credit history or onerous debt may be upside-down financially starting the first day on the job. Best case, that will

By Mark Jorgensen

be a distraction from their work; worst case, it may mean court judgments, garnishment of wages or bad publicity in your community if they continue on this established path.

The second reason often cited for investigating credit history is a bit more nebulous. We’ve had some clients express concern that someone who can’t manage their own finances shouldn’t be entrusted with the important financial decisions in the arrangement conference with the families you serve in your community.

Bottom line: review and re-evaluate your recruiting process. If you’ve experienced a scenario such as this, it’s prudent to do some background work before incurring the time and expense of in-depth interviewing. With proper authorization from a candidate, background checking today is faster, easier and less expensive than ever before. Take advantage of new technology that enables you to learn more about your candidates.

So how can a professional recruiter help? A recruiter will partner with you in this process. Our primary role is to identify great talent for you. That includes reference checks from their work history and sharing any other insight we glean from our interview process.

Ideally, the hiring funeral home will conduct whatever background checks they deem necessary for employment at their particular firm. Working together, we believe we can optimize one of the most challenging tasks you face in the funeral business today—finding, qualifying, referencing, offering and hiring.

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Social media is the best thing ever! Not only can people see what an amazing meal you are having

tonight, they can hear about your latest trip to the store. In today’s society we are a bit guilty of sharing a little too much through social media. While many believe it is going to destroy communication as we know it, you can’t deny its presence. In fact, the next time you go into a restaurant, look at how many people are using their phone at the table while in the midst of communication with those at their table!

So with social media everywhere, and all of us with a digital footprint, the question becomes how can I use it at work? Specifically, can I use it in the hiring process? Or how about the firing process? Let’s be clear, for the firing process it does not mean that you update your business’s status by announcing that you just fired Bob, and then tweet “Bob’s fired #goodriddance”. The question is when and to what extent can a business use social media when in the hiring and firing process?

The use of social media is definitely an evolving area of law right now. When it first started it was pretty fuzzy on what was allowed and not allowed. Then with some crazy stories and scenarios (like employers asking for passwords to social media accounts during interviews or employers making employees access their sites in their presence) the limits on use of social media started to become clearer. So where are we right now?

The use of public domain social media is an acceptable tool, but it has limits. That is a loaded answer, and probably

Social Media | The Ultimate Hiring & Firing Tool?

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runs close to the saying “Buyer Beware.” There are some great reasons to use it, but like any resource or tool, there can be risks.

HIRINGFor hiring you can use social media as a background check, but there is the risk of discrimination. Remember, you can’t ask for a photo of an employee as part of the interview process. You also can’t ask about religious affiliations, clubs, marital status, and the list goes on. The problem is that many of these things are included and listed in social media. If you pull two candidates from their resume and then decide to interview one and not the other—you need to be able to say it was not based on any protected class (race, color, gender, religion, disability status, etc).

How do you use it then? There are a few things that can help limit your risk. First, if you are going to use social media as a background check, have someone else perform the check. Let them “scrub” the information so it removes anything that would be protected. That way you only get additional information and not protected information.

Second, make it part of your disclosure on your application. State that you are going to perform certain background checks to verify information and it may include public domain information on the internet. The last thing to consider doing is to simply ask the applicant if there is anything out there in the public domain that they want to warn you about or identify. Again, this is an open-ended question and not meant to identify a protected piece of information. Instead it’s just an


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was because she only made a few bucks an hour. When she got to work the next day, she was fired. However, the court held that she was free to discuss those things and therefore was wrongfully terminated.

Employees have the right to discuss their job, working conditions, pay, and other work-related issues. An employer cannot restrict those discussions. However, an employee cannot discuss confidential information, such as customers or families that use their business. Employees also cannot represent the business on issues, unless granted such permission, and cannot break copyright laws.

Your Employee Policy Manual should explain the company’s policy on certain areas such as confidential information, customer lists, trademark/copyright laws. Then your social media policy should identify that violations of company policies, through any means including social media, can result in discipline up to and including termination.

Overall, social media is a tool that can help you in the hiring and firing process. In most cases, it should never stand alone as the reason for hiring (or not hiring) or firing. Don’t treat social media as a weapon, and ban it from your business. Explain to any candidate that in today’s age social media is a resource and you plan to look. Take the time to embrace social media and communicate to your staff how it can be used. With a good social media policy you can help your business in the long run.

opportunity for the applicant to say “Yeah, you know if you Google me you’re gonna see a story about a kid who tried to steal a hot air balloon, but…”

That leads to one last item. If you do use the internet/social media as a tool in hiring, make sure you have correct information. If your applicant is John Doe, verify it is your John Doe before you decide to consider the information.

FIRINGFiring for use of social media can be a tricky issue. First and foremost, if you do not have a social media policy it is almost impossible to fire over social media content. With a social media policy it becomes easier, but not necessarily easy.

There are several cases that have discussed whether an employer can fire an employee for posting certain things in the context of social media. Over the years, and through a few cases, we have a very clear understanding of what works and what doesn’t work. In fact, in one of the most recent rulings by the National Labor Relations Board (NLRB), we actually have an approved social media policy. (This Social Media Policy is available at LemasetersConsulting.com.)

A few key things to understand about implementing any social media policy: you cannot blindly prohibit social media. In fact, you should not limit social media. Instead you should identify areas that are acceptable and identify restrictions. As an example, in one early case, an employee got mad at her boss and then ranted about him on her Facebook page. She complained about him, her job, and how cheap he

Continued...Ultimate Hiring & Firing Tool


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One of the biggest fears for employers is that of firing someone—and then that

employee coming after them for some claim, like a discrimination or wrongful discharge claim. While anyone is free to file suit, keep in mind that many of these claims are difficult to win, but at the same time can be costly and timely to both parties. However, most businesses make the same mistake of keeping an employee long after the time they should have terminated them. This case demonstrates a few things, including how costly keeping someone after they should have been terminated can be, and also how an employer can ultimately prevail with the help of some good documentation and procedures.

The initial facts of this case are very clean, and may leave many wondering why this case made it to Court. The case involves a cemetery worker, Mateo Garcia, who admittedly dug a grave with a backhoe and damaged an existing gravesite. Mr. Mateo then covered up the damage, and did not report it to his supervisor. He was fired for violating company policy (which included failing to report damage to a gravesite and intentionally hiding the damage in an effort to conceal). Mateo Ruelas Garcia v. Service Corporation International et al., Los Angeles Cty. Supr. Ct., 2013 No. BC430926.

However, Mr. Mateo filed claims against the Eden Memorial Park including wrongful termination in violation of whistleblowing protection. While the Court rejected Mr. Mateo’s claims for wrongful termination under the Whistleblower Protection Law, the jury did find that there was a claim in

favor of Mr. Mateo under an implied covenant not to terminate except for good cause, and there was a breach of this implied covenant. The jury awarded over $150,000 in damages against the Cemetery. The Cemetery appealed the decision and the case went before the Appeals Court.

Again, the initial facts are quite clear. In fact, the Plaintiff, Mr. Mateo, admitted to causing the damage to the existing gravesite while he was digging an adjoining grave. When asked why he failed to report the damage to the existing concrete burial container he stated, “I took care of it.” He went on to state that he believed the damage (which was a broken container that ultimately had to be replaced) wasn’t that much and just wanted to continue work and go to lunch. Plaintiff also admitted to concealing the damage he caused.

Based on those facts, the cemetery fired the Plaintiff. The record showed that the Plaintiff was fired for not reporting a broken vault to management and concealing the damage. The Cemetery also provided facts that the Plaintiff had been warned over the years for various offenses. The record showed that in 2000 the Plaintiff had caused a wrongful burial and a written warning was issued. Plaintiff received another written warning in 2004 for failing to cover graves properly. In 2007, he received another warning for setting grave markers improperly. Later in 2007, Plaintiff caused a wrongful burial and was warned in writing that any future problems would lead to disciplinary actions including termination.

Case Analysis | "You're Fired!"

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investigator asked Mr. Mateo to show where the grave disturbances occurred but he declined stating that he didn’t remember where it happened. He also went on to state to the investigator that his managers instructed him to break vaults in certain situations.

After his interview with DCA, the Plaintiff went on television and stated that the Cemetery had a practice over the past ten years of breaking burial plots. This was the first time the Plaintiff had made such a claim.

Based on all of the facts, the jury was asked to decide if the Plaintiff was wrongfully terminated in violation of public policy under the whistleblower protection. The jury rejected the Plaintiff’s claim for wrongful discharge under whistleblower protection. The reasoning being, among other things, that he wasn’t fired for reporting the issues to a regulatory board or going to the press. He was fired for his actions, which he ultimately reported after he was fired and they were actions he had done himself.

However, the jury did find that there was an implied covenant not to terminate without good cause and the jury also found that the Cemetery had breached this implied covenant. The reason the jury came to this conclusion is because the jury instructions stated that:

An employment relationship is not at-will if the employee proves that the employer, by word or conduct, agreed that the employee would be discharged only for good cause. To prove this claim the Plaintiff needs to show, among other things, that the Cemetery promised, by words

As a twist to the facts, which seemed entirely in favor of the Cemetery, the Plaintiff introduced facts about the Cemetery’s past practices. Plaintiff testified that in all of this, he was just following orders. He introduced facts that showed that the Cemetery did conduct interment verification training and had policies on proper and respectful handling of remains, however the Plaintiff claimed that Management intimidated him to not complain or acknowledge.

One example cited by the Plaintiff occurred in 2002 when he and another co-worker found a skull when excavating a new site. They dumped the skull with the other excess dirt in another site. No one had reported the incident to management. During a work interview later, after the facts were known, the Plaintiff was asked why he never reported the incident. He stated that he just couldn’t go to management. The Cemetery did fire management that was in place during this and other claimed incidents. The fired manager contacted The California Department of Consumer Affairs (DCA) and reported the Cemetery for various issues including endowment care misuse and other wrongdoing with the care of the graves. The DCA investigation concluded that 5 graves were disturbed.

Fast forward to the time of Plaintiff’s termination. Plaintiff, upon being terminated, told his manger that “He had messed it up, and he apologized for what he had done.” A few months after his termination he was contacted by DCA, and the Plaintiff admitted to the DCA investigator that the grave disturbances had occurred. The


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Continued...You're Firedlaw, the jury could not award damages against a Defendant that was not mentioned.

Overall, the Cemetery prevailed. The Appeals Court affirmed the lower Court’s decision, finding in favor of the Cemetery and awarding no damages to the Plaintiff. There are several takeaways from this case. One of the first is documentation. The Cemetery prevailed, and won a verdict despite what a jury found, in part to its records. It was able to show that they had—in writing—clear proof that the employment was at-will. Further, they had documentation that the employee acknowledged this fact. They also had documentation to show the employee’s previous errors, and warnings.

The second takeaway is that waiting to fire an employee can lead to far worse issues. So many times we wait to fire someone because of timing. Let me tell you that there is never a great time to fire or get fired. If you think an employee should be fired, typically you’ve already waited to long. The last takeaway is that sometimes you have to fight to win. No one likes a lawsuit (oh wait—lawyers might), but sometimes you have to push through. Just because someone files a claim against you doesn’t mean that you are wrong. The law allows lawsuits to determine the facts, so don’t be afraid to stand up.

or conduct, to discharge plaintiff only for good cause and that the Cemetery did in fact discharge the Plaintiff without good cause.

While the jury found that the Plaintiff had proven these elements, the Court however granted a judgment notwithstanding the verdict (JNOV—basically means that the Jury decided one thing, but the Judge granted a different judgment because there was no way that the jury could have made that decision based on the facts. They are rarely granted and are used to avoid unjust decisions.)

The reason the Judge granted a JNOV in this case is because, as a matter of law, there was no way that the Plaintiff could show that the Cemetery promised he would be fired only for good cause. The Plaintiff introduced facts himself that set forth an at-will employment. At one point the Plaintiff was asked, “So you understood that you could be fired at any time for any reason and that you could leave your job at any time for any reason, correct?” The Plaintiff responded, “Yes, I knew it.” In addition, the company handbook, which was signed and acknowledged by Plaintiff, described his position as at-will.

As one last bit of proof for the Judge to vacate the jury’s decision, the damages were identified in the Jury Instructions to be awarded against CCFS (California Cemetery and Funeral Services, LLC) which was the named party in the original lawsuit and the only party identified in the jury instructions. But, the jury awarded damages against SCI, although SCI was never listed in the Jury Instructions. As a matter of

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• About Parliament •

The owl has long been associated with wisdom, longevity

and truth. They've appeared for centuries in old texts (and

sometimes new texts) related to death and to justice.

Lemasters Consulting is a blend of two things:

deathcare and law.

The Owl has been a part of our company symbolism since our

founding (the three colored circles in the logo for Lemasters

Consulting are inspired by the shape of an owl's eye).

And the name of this publication?

A Parliament is what you call a group of owls.

•

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Parliament Volume 4, Issue 1

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